The notion of freedom of contract is the acknowledged basis of contract law in both the common law system of England as well as in the civil law system of Germany. Arguments derived from comparative law are thus nowadays increasingly accepted in construing and applying one’s own law.” 2 Though the ways in which they are solved may be different, the outcome is mostly the same or similar. The problems are, after all, often identical. The solutions developed in a particular system may serve as useful models for other systems. “The Law is not only the basis for all civilised intercourse it forms part of our life as an important cultural phenomenon. If these threats failed, suppose Jack then tells Olson, “I’m going to haul you into court and sue your pants off.(2002) Oxford U Comparative L Forum 1 at .ac.uk | How to cite this article Even though Olson may be guilty, this threat makes the repurchase contract voidable, because it is a misuse for personal ends of a power (to go to the police) given each of us for other purposes. Suppose Jack knows that Olson has been tampering with his cars’ odometers, a federal offense, and threatens to have Olson prosecuted if he will not repurchase the car. The agreement is voidable, even though the underlying deal is fair, if Olson feels he has no reasonable alternative and is frightened into agreeing. He threatens to break windows in Olson’s showroom if Olson does not buy the car back for $2,150, the purchase price. Olson, and the next day realizes he bought a lemon. Jack buys a car from a local used-car salesman, Mr. There are many types of improper threats that might induce a party to enter into a contract: threats to commit a crime or a tort (e.g., bodily harm or taking of property), to instigate criminal prosecution, to instigate civil proceedings when a threat is made in bad faith, to breach a “duty of good faith and fair dealing under a contract with the recipient,” or to disclose embarrassing details about a person’s private life. Such facts as the victim’s belief that the threatener had the ability to carry out the threat and the length of time between the threat and assent are relevant in determining whether the threat did prompt the assent. The question is whether the threat in fact induced assent by the victim. It does not matter that the person threatened is unusually timid or that a reasonable person would not have felt threatened. Third, the test for inducement is subjective. If, for example, a supplier threatens to hold up shipment of necessary goods unless the buyer agrees to pay more than the contract price, this would not be duress if the buyer could purchase identical supplies from someone else. Second, there must be no reasonable alternative. This rule contains a number of elements.įirst, the threat must be improper. Here the perpetrator threatens the victim, who feels there is no reasonable alternative but to assent to the contract. The second kind of duress is duress by threat it is more common than physical duress. The Restatement is undoubtedly correct that there are “relatively rare situations in which actual physical force” is used to compel assent to a contract. He is, it is sometimes said, ‘a mere mechanical instrument.’ The result is that there is no contract at all, or a ‘void contract’ as distinguished from a voidable one” (emphasis added). ![]() It is defined by the Restatement (Second) of Contracts in Section 174: “If conduct that appears to be a manifestation of assent by a party who does not intend to engage in that conduct is physically compelled by duress, the conduct is not effective as a manifestation of assent.”Ĭomment (a) to Section 174 provides in part, “This Section involves an application of that principle to those relatively rare situations in which actual physical force has been used to compel a party to appear to assent to a contract.…The essence of this type of duress is that a party is compelled by physical force to do an act that he has no intention of doing. ![]() If a person is forced into entering a contract on threat of physical bodily harm, he or she is the victim of physical duress.
0 Comments
Leave a Reply. |
AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |